State of New Jersey v. Darrell Edwards

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.DARRELL EDWARDS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-04-1892.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 27, 2010

Before Judges Cuff, Sapp-Peterson and Simonelli.

Defendant Darrell Edwards appeals from the denial of his petition for post-conviction relief (PCR) and the denial of his motion for a new trial. Defendant is serving a term of life imprisonment with a thirty-year period of parole ineligibility following his conviction of first degree murder. We affirmed his conviction and sentence, State v. Edwards, No. A-6874-98 (App. Div. October 30, 2002); the Supreme Court denied certification, 175 N.J. 433 (2003).

We set forth at length the facts of this case in our earlier opinion. Edwards, supra, (slip op. at 4-6). Briefly, the charges arose from the shooting of the owner of a delicatessen. Two men entered the store, one was about six inches taller than the other. The taller man placed a sandwich order. The delicatessen owner was shot in the back of the head from a distance of at least one foot.

The victim and Victor Williams, an employee were in the delicatessen at the time the two men entered. Williams positively identified a photograph of defendant two days later and at trial as the taller man who ordered the sandwich. Patricia McKinnis heard the gunshot, and then observed defendant and another man moving quickly away from the delicatessen. She also saw defendant throw something into a garbage can.

Police recovered a spent shell in the delicatessen and a semi-automatic nine-millimeter gun from the trash can. Police later recovered the bullet from the victim's body, and a ballistics expert testified that the bullet was fired by the gun retrieved from the trash can.

At trial, defendant challenged the identifications of him by Williams and McKinnis. His defense, however, was not confined to misidentification. Defendant argued not only that he was not in the delicatessen that evening but also that the victim was shot by another in relation to a territorial dispute with a drug supplier, who had ordered the victim's murder. To that end, defendant sought the identity of a confidential informant and the informant's testimony. He also sought to introduce evidence of the victim's participation in the sale of illegal drugs. All of the third-party guilt evidence was barred at trial.

Defendant filed a motion for a new trial and a petition for PCR. The motion for a new trial was based on newly discovered evidence. Defendant submitted results of DNA tests of the sweatshirt and gun recovered from the trash can. The tests excluded defendant as a possible source of genetic material found on both items. The new trial motion was also based on the recantation of McKinnis. Defendant submitted a 2007 affidavit from her in which she avers that she is not sure of the identity of the men who threw a sweatshirt and gun into the garbage can. She also averred that she had used heroin, cocaine and drank beer before she observed the men discard the items.

In addition, defendant submitted affidavits from Steven Blevins, a witness at the third but not fourth trial,*fn1 and Maurice Brown. Blevins averred that he testified truthfully at the third trial that defendant was not one of the men he saw on the night of the shooting. Brown averred that he saw two men place something in a garbage can but defendant was not one of the men.

Addressing the DNA evidence, the motion judge held that it was neither material evidence nor likely to change the jury's verdict if a new trial ensued. He reasoned that the sweatshirt retrieved from the trash can was striped and all eyewitnesses simply testified that the men wore black. The only person who testified that one of the men wore a striped shirt, Blevins, firmly stated that defendant was not one of the men he saw that night. Blevins did not testify at the trial that produced the guilty verdict; thus, crediting Blevins' testimony did not produce material evidence of innocence but simply evidence that defendant did not wear the discarded shirt.

The DNA evidence, however, counters McKinnis' testimony that she saw defendant throw something into the garbage can. The judge, however, found that the 2007 affidavit did not cast serious doubt on the veracity of her trial testimony. He found that McKinnis had multiple opportunities to change her testimony before and during the third and fourth trials. The judge found her recantation "unbelievable." He also cited "numerous instances of witness intimidation" during the prosecution of the matter and suggested the recantation was the result of intimidation. Even if true, the motion judge held that McKinnis' revised testimony was not material because it did not exonerate defendant and does nothing to undermine Williams' testimony that defendant was the taller of the two men who entered the delicatessen and shot the victim.

The judge dismissed the Blevins and Brown affidavits because they could not be considered material, newly discovered evidence that would probably alter the result at a new trial. He reasoned that Blevins' allegedly powerful evidence only produced a hung jury at the trial at which he testified. As to Brown, the judge found his information could not be considered newly discovered. He also noted Brown's resistance to be involved in the matter and considered his omission as a trial witness a strategic choice by trial counsel.

Defendant also filed a PCR petition in which he alleged ineffective assistance of trial counsel. Defendant alleged that trial counsel erred when she did not object to the mistrial declared by the trial judge during the second trial and did not assert defendant's double jeopardy protections. Defendant also asserts that the trial judge erred in barring evidence of third-party guilt, and appellate counsel failed to recognize that this court misconstrued a third-party's statements to the confidential informant. He asserts that appellate counsel should have sought reconsideration in this court or raised the issue in the petition for certification, and counsel's failure to do so deprived defendant of the effective assistance of counsel. Finally, defendant argued that his sentence violated the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005).

The PCR judge held that defendant's substantive arguments were without merit. The judge dismissed the failure to object to the third mistrial because defense counsel had moved for a mistrial and waived double jeopardy protections. The judge reasoned that the trial judge declared a mistrial for reasons other than those advanced by defendant. The judge also found that defendant suffered no prejudice because "the [trial court] would have granted one of its own accord." The motion judge also held that Holmes v. South Carolina, 547 U.S. 319, 206 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) had no impact on the trial court decision to exclude evidence of third-party guilt and this court's analysis of the issue.*fn2

The PCR judge also found that this court did not misread or misapprehend the factual record and held that the confidential informant could not be considered an essential witness for the defense. The judge also rejected defendant's sentencing claims because defendant had not raised Blakely/Natale claims at trial.

On appeal, defendant raises the following arguments:

POINT I SUPPRESSION OF GRAHM'S CONFESSION TO THOMAS' MURDER AND OTHER EVIDENCE IMPLICATING GRAHM VIOLATED MR. EDWARDS' RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE.

2. The Lower Court Erred In Ruling That Grahm's Admission Was Inadmissible Hearsay; It Is Admissible Evidence As A Statement Against Interest Which Appellate Counsel Was Ineffective in Failing to Raise.

a. Grahm's Confession Was An Admissible Statement Against Interest.

b. The Trial Court Erred In Relying On Rule 516 To Prevent Disclosure Of The Third Party Admission Which Was A Critical Statement Against Interest.

c. Ineffective Assistance of Appellate Counsel.

3. Mr. Edwards' Constitutional Right to Present a Defense Entitled Him to Present Grahm's Admission to the Jury; The Lower Court Erroneously Dismissed Mr. Edwards' Third Party Guilt Claim Because it Did Not Consider Grahm's Admission But Rather Only the One Speculative Fact in the Record: the Potential Identity of Two Hit M[e]n.

4. Reversal of Mr. Edwards' Conviction is Required.

POINT II THE COURT ERRED IN DENYING A NEW TRIAL BASED ON THE DNA EVIDENCE; THE TEST RESULTS EXCLUDING MR. EDWARDS FROM MALE DNA ON THE SWEATSHIRT AND GUN SATISFY THE CARTER*fn3 NEW TRIAL TEST.

1. The Lower Court's Analysis Failed To Take Into Account The Different Ways That Modern Post-Conviction DNA Testing Can Yield Newly Discovered Evidence Requiring a New Trial.

2. Lower Court Erred In Finding That As A Matter Of Law The DNA Results Are Not Material Because DNA Evidence Was Not Used to Convict Him.

a. The Lower Court Erred In Not Considering Substantial Evidence That Corroborates McKinnis' Recantation That She Had No Idea Who Was By The Garbage Can And "Was Just Guessing" That It Was Mr. Edwards.

1. Scientific Studies Demonstrate That Ms. McKinnis Could Not Have Identified The Perpetrators From 271 Feet.

2. DNA Testing Of Crime Scene Evidence Excludes Mr. Edwards As The Major And Minor Profile On the Sweatshirt The Tall Perpetrator Left At The Scene.

3. The Police Ignored Or Suppressed Testimony From Other Eyewitnesses Who Said Mr. Edwards Was Not One Of The Two Perpetrators.

b. The Lower Court Mischaracterized The Evidence It Used To Find The Trial Testimony Believable.

1. The Lower Court Erred in Finding the Recantation Inherently Suspect Because McKinnis Had Multiple Opportunities to Change Her Story.

2. The Lower Court Erred In Finding That The Jury Believed McKinnis Was 46 Feet From The Crime Scene.

3. The Lower Court Erred In Relying On An Irrelevant Fact.

2. The Lower Court Erred In Not Holding An Evidentiary Hearing To Determine If The Recanting Witness Was Credible, If Her Drug Addiction Contributed To The Misidentification, If Her Recantation Has Been Coerced, And If the Investigating Detectives Had Influenced/Directed The Identification.

a. The Trial Court Erred in Not Making a Credibility Determination.

b. The Trial Court Erred In Not Crediting McKinnis' Assertion Of Proof That She Had Been High And Intoxicated When She Allegedly Made Her Identification.

c. The Lower Court Erred In Failing To Investigate The Baseless Accusations Of Coercion Used To Obtain The Recantation.

d. The Lower Court Erred In Failing To Make Credibility Determinations Of Detectives Involved In The Original Murder Investigation.

3. The Trial Judge Erred as [a] Matter of Law in Finding that Even if Believable, McKinnis' Recantation Does Not Satisfy the Carter Test.

POINT IV THE TRIAL COURT FAILED TO CONSIDER OTHER CLAIMS.

POINT V INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

I Defendant filed a multi-faceted PCR petition which the judge denied in its entirety. He argued that appellate counsel provided ineffective assistance of counsel because counsel failed to appreciate this court's misapprehension of the record that supported our ruling that evidence of third-party guilt was properly excluded. Defendant also argued that police interfered with his ability to call Maurice Brown as a trial witness and challenges the photo array. Finally, defendant argues trial counsel provided ineffective assistance of counsel when she failed to object to a mistrial at the second trial and failed to call Steven Blevins as a witness at the fourth trial.

A. Evidence of Third-Party Guilt Defendant argues he was entitled to disclosure of confidential information concerning a third party's possible involvement in the victim, Errich Thomas' murder. He contends that the trial court confused the investigator's sources of information and erred in concluding that a statement made by a Georgia drug dealer was hearsay. He claims that this court made the same errors as the trial court and that appellate counsel was ineffective "by failing to correct the Appellate Division's misconstruction of the record."

The State responds that the court properly suppressed the information in question because that information did not constitute relevant evidence of third-party guilt. It asserts that this court's decision was based upon a proper understanding of the record and a correct analysis of the law, and that appellate counsel provided eminently competent representation. It also contends that this entire issue is procedurally barred under Rule 3:22-5 because it was raised and adjudicated on direct appeal.

As we explain in this opinion, the validity of the trial court's protective order has already been decided and cannot be raised again in this proceeding. In addition, defendant failed to make a prima facie showing of ineffective assistance of appellate counsel. Accordingly, the judge properly rejected these arguments raised in defendant's PCR petition.

The facts underlying this point came to light during defendant's second trial. At a side-bar conference, defense counsel learned that the State had evidence that potentially connected defendant with an interstate drug conspiracy. The prosecutor had previously approached the Presiding Judge of the Criminal Division to obtain ex parte adjournments so that the police would have time to investigate information received from a confidential informant. Ultimately, the police could not corroborate the information received and the investigation was dropped. Although defense counsel was aware of the adjournments and renewed investigation, she did not know what information had been given to the police.

Defense counsel moved for a mistrial based on withheld information. The trial judge refused to grant this motion without receiving more information, and decided to receive evidence from the prosecutor in chambers in order to determine whether the State's application for a protective order should be granted.

Investigator Kirk J. Schwindel testified at the in camera proceeding. He stated that in February 1997 he received information from a detective in the Essex County Prosecutor's Office, who was temporarily assigned to a United States Drug Enforcement Agency (DEA) investigation in Georgia. That detective relayed information he had received from a confidential informant actively engaged in the investigation.

According to the informant, a Newark drug dealer known as Ak Grahm, who was operating out of Atlanta, had ordered Thomas' murder. The informant said Grahm ordered the hit because Thomas was selling drugs from his sandwich shop, which was located in Grahm's territory, and because Thomas was using Grahm's supplier in New York City.

Schwindel testified this information corroborated information he heard "on the street level right after [the] homicide" that Ak Grahm had ordered the hit. Street information further indicated that defendant was involved in dealing drugs in Grahm's territory. For that reason, Schwindel suspected that defendant might be working for Grahm. He explained: "I knew [defendant] was involved in drugs. He sold on 18th Avenue. If this guy Ak Grahm controlled the area and most of the drug trade as far as heroin and everything went he was selling, then he would have to more or less be working in some way."

Schwindel stated the confidential informant also told the detective that Grahm often used two individuals, Daniel Barber and Andre Jackson, "to come up from Georgia to handle his business." Grahm himself never said, however, he used these men to murder the victim. Schwindel put together photo arrays containing pictures of Barber and Jackson and showed the arrays to Williams. Williams did not identify either of the men.

Schwindel never spoke directly to the confidential informant and did not know his name. The prosecutor told the court the confidential informant was still actively engaged in gathering information about Grahm's drug organization. He argued the disclosure of the informant's name would expose the informant and his family to grave risk. Further, he contended that revelation of the information transmitted by the informant would allow Grahm to deduce the informant's identity.

Stating that she was satisfied that the State had made all of the disclosures it was required to make, the trial judge granted the application for a protective order. She found that the N.J.R.E. 516 privilege applied, because the benefit to the defense of any further disclosure was merely speculative. She also noted that disclosure of additional information would put persons at risk.

In affirming defendant's conviction, this court listed the arguments that defendant raised on direct appeal. State v. Edwards, supra, slip op. at 2-3. Defendant's first point asserted:

THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT TO PRESENT EVIDENCE IMPLICATING OTHER PERSONS WITH MOTIVE[S] TO KILL THE VICTIM VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY A JURY. (U.S. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, PAR. 1, 10).

A. The Matter of The Information Provided

By The Confidential Informant.

B. The Matter of The Testimony Implicating The Victim In The Illicit Drug Trade.

C. The Court's Ruling Excluded Relevant Evidence And Denied Defendant His Right To Present A Defense And His Right To Due Process.

[Id. at 2.]

We addressed this issue in an extended discussion, taking note of the privilege against disclosure embodied in N.J.R.E. 516 and N.J.S.A. 2A:84A-28, and the balancing test set forth in State v. Milligan, 71 N.J. 373, 384-86 (1976). State v. Edwards, supra, slip op. at 6-10. In finding that defendant had no need to learn of the confidential informant's identity, this court reasoned that the informant played no role in defendant's arrest, was not an active participant in the crime, and was not an essential witness in the case. Id. at 7-8. We also noted that the only eyewitness to the shooting, Williams, could not identify Barber or Jackson, but did identify defendant. Id. at

8. We concluded it was unlikely that the proffered evidence would raise a reasonable doubt as to defendant's guilt because there was "an insufficient link between the third parties and Thomas and his murderer." Ibid.

"Procedural bars exist in order to promote finality in judicial proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997). To that end, Rule 3:22-5 provides: "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings."

Here, the bulk of defendant's arguments are identical to those that were adjudicated on direct appeal. Specifically, defendant asserts that Grahm's "confession" was an admissible statement against interest, that the N.J.R.E. 516 privilege against disclosure of a confidential informant does not apply in this case, and suppression of Grahm's admission abrogated defendant's constitutional right to present a defense.

This court clearly held that the common law privilege against disclosure, as codified by N.J.S.A. 2A:84A-28 (N.J.R.E. 516), protected the informant's identity and suppression of this evidence did not impact defendant's ability to mount a defense. State v. Edwards, supra, slip op. at 6-7. Thus, defendant is barred from raising those issues on post-conviction review.*fn4

Defendant raises two issues, however, that are properly before the court. The first is that the PCR court and this court erroneously combined the distinct sources of evidence implicating Grahm in the murder. The second is that defendant received ineffective assistance of appellate counsel when appellate counsel did not pursue this issue.

In our 2002 opinion, we stated:

Defendant argues alternatively that even if the court's decision to conceal the identity of the informant was correct, the exclusion of the proposed testimony was nevertheless erroneous. We agree with Judge Honigfeld that the excluded testimony would have been hearsay. The testimony, related third-hand by the witness at the in camera hearing, and second-hand to the DEA agent by the confidential informant, consisting of unverifiable "street information," would consist of statements made "other than . . by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

N.J.R.E. 801(c); see State v. Brown, 170 N.J. 138, 148 (2000) (finding information contained in an informant's tip hearsay) (citing State v. Smith, 155 N.J. 83, 95 (1998)). Nor do we find that the judge's conclusion to bar the testimony because it had the potential of placing the informant at risk to be error. There was testimony at the in camera hearing that exposure of the informant's name would cause risk to both him and his family. [Id. at 8-9.]

This passage contains a mistake. The judge who presided at the third trial determined that the identity of the informant and the information that he provided should be protected. Further, she did not base her decision on the rule against hearsay, but on the N.J.R.E. 516 privilege and the information's potential to place persons at risk.*fn5 The trial judge at the fourth and final trial excluded testimony as hearsay, but that testimony was proffered by Williams, who proposed to testify concerning the victim's involvement in drug dealing. This decision had nothing to do with the confidential informant.

The fact that this court may have confused these two rulings had no impact on the import of the paragraph or the decision. As evinced by the topic sentence, the court was addressing defendant's argument that Schwindel should have been allowed to testify concerning the information he received from the informant as relayed to him by the detective in the DEA investigation. This proposed testimony was unverifiable hearsay. Furthermore, we agreed with the trial court's conclusion that Schwindel's testimony would have placed both the informant and his family at risk. Our decision to affirm the exclusion of this testimony was thus soundly based on the facts and the law.

Defendant's complaint that the court confused the nature of Schwindel's proposed testimony is unfounded. To be sure, Schwindel testified to two sources of information: one originating from the confidential informant in Georgia, and one originating from information heard "on the street level" in Newark. There is no discernable difference, however, between unverifiable hearsay gleaned from the street in Newark and unverifiable hearsay gleaned from confidential informants in Atlanta. Both can be properly characterized as "street information." We discern no error in our use of the term "street information" to describe all of the information that Schwindel proposed to convey.

The PCR court was bound to follow the findings of the Appellate Division. See Severns v. Concord Chem. Co., 373 N.J. Super. 368, 374 (Law Div. 2004) (noting that "[t]rial courts are bound by decisions of the Appellate Division and . . . by decisions of the Supreme Court, that apply to the facts in the case under consideration"). "Even where manifestly erroneous, the decision on appeal must be enforced as written, and relief . . . can be had only in the appellate court whose judgment it is." Tomaino v. Burman, 364 N.J. Super. 224, 233 (App. Div. 2003) (internal quotation omitted), certif. denied, 179 N.J. 310 (2004).

Notwithstanding the restraints imposed on the PCR judge, his reliance on this court's recitation of the admissibility of Schwindel's testimony is irrelevant. The issue is whether the conflation of the sources related by Schwindel led to a misapplication of the law. A close reading of the prior opinion in light of the trial record clearly indicates that it did not. For these same reasons, we reject defendant's argument that appellate counsel was ineffective for failing to move for reconsideration or raise the confusion in the petition for certification.

B. Maurice Brown

Defendant argues that the trial court erred in failing to consider his claim of improper police interference with his right to call Maurice Brown as a witness, his claim of ineffective assistance of counsel with regard to Brown, and his request for access to the photo arrays used by the police in this investigation. Defendant's argument is bereft of citations to the record or relevant legal authority.

Defendant's argument on this point is insufficient to warrant appellate review. See Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 45 (App. Div. 2003) (holding that court will not consider an issue that is based on mere conclusory statements); Miller v. Reis, 189 N.J. Super. 437, 445 (App. Div. 1983) (noting that "an argument employing this economy of words and authority does little to persuade us of the righteousness of the claim"); State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (holding that parties have absolute duty to justify their positions by specific reference to legal authority). Even if review were appropriate, however, these assertions lack legal merit.

At the hearing, PCR counsel raised trial counsel's failure to call Brown as a witness, yet conceded that Brown may not have wanted to get involved in this matter. He further conceded that the ineffective assistance claim "has not been fully briefed" and that Brown was being raised primarily because his affidavit supported McKinnis' recantation. Motion counsel also referred to Brown and urged the court to hear his testimony at an evidentiary hearing. Neither counsel argued that the police had improperly interfered with Brown.

The PCR court addressed defendant's ineffective assistance of counsel claim. It set forth defendant's contention that trial counsel was ineffective in failing to call Brown as a witness in the fourth trial. After referring to the standard set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), the court concluded:

Maurice Brown made it known that he had no interest in being involved in the case and did not want to testify at trial. Brown acknowledges this in his affidavit. Since he did not want to be involved, it was not egregious conduct on the part of the Defendant's counsel not to call the [sic] him. Consequently, there is nothing to suggest that the performance of the Defendant's trial counsel was ineffective in not calling . . . Maurice Brown.

Although the court did not address defendant's claim that Brown had been the object of improper police interference, that issue was not properly before the court. The issue was raised as a bald assertion in defendant's memorandum in support of his motion for a new trial and was again asserted in his reply memorandum. Although defendant claims that police officers created a false statement attributed to Brown, he admits that this does not "technically" constitute newly discovered evidence. In any event, the only relevance of such an assertion at the PCR hearing would have been to add weight to Brown's affidavit. At oral argument, counsel admitted that Brown's role in the proceedings was to add credibility to McKinnis' recantation. The court clearly considered the merit of Brown's affidavit in deciding that an evidentiary hearing was not warranted. Therefore, the court gave this issue all of the consideration it was due.

C. Photo Array

Defendant's claim about the photo array was not discussed at the PCR hearing. We have not located any motion concerning the production of the photo array or any petition or memorandum that raised such a claim. Although the State appears familiar with the issue, there is nothing in the record for this court to review in this regard. Because neither the oral arguments nor the documents submitted to the PCR court raised this issue, the court did not err in failing to address it.

D. Failure to Call Steven Blevins at the Fourth Trial Defendant argues that trial counsel was ineffective in failing to call Steven Blevins as a witness at his fourth trial. The State responds that trial counsel made a reasonable strategic decision to not call Blevins as a defense witness, given Blevins' personal friendship with defendant and his history of multiple felony convictions.

The PCR court rejected defendant's claims of ineffective assistance of trial counsel. It found that "[d]efendant's trial attorney made a strategic decision to not call Steven Blevins during the [d]efendant's fourth trial." It based that conclusion on the fact that prior to the fourth trial, Blevins had pled guilty to criminal charges that had been pending during the third trial. It reasoned that Blevins offered nothing new at the fourth trial "other than a transcript to be cross-examined on and additional indictable counts."

A defendant establishes a prima facie case of ineffective assistance of trial counsel when he or she demonstrates a "reasonable likelihood" of succeeding under the test set forth in Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. State v. Preciose, 129 N.J. 451, 462-63 (1992). Thus, in order to sustain a claim of ineffective assistance of counsel, defendant must show that his attorney's representation was objectively deficient and that it is reasonably probable that but for counsel's errors, the result of the proceeding would have been different. State v. Allegro, 193 N.J. 352, 366-67 (2008).

Blevins testified at the third trial that on the evening of the shooting he was sitting with his two-year-old son in front of a barbershop on Springfield Avenue, about twenty feet from the sandwich shop. He heard a gunshot and saw two men come around the corner from out of the shop. The first man to pass him was short with wavy hair; Blevins and this man looked at each other eye-to-eye. The second man was taller with nappy hair; Blevins did not get a good look at this man's face. Nevertheless, Blevins said that he was positive that defendant was not the taller man. Defendant and Blevins had attended the same high school and knew each other from playing basketball in the neighborhood. The second man that he saw had a stockier build than defendant and a different complexion.

Defendant contends that Blevins' testimony was probably the reason that the jury failed to convict him at the third trial. We, of course, will never know. There are several important differences between the third and fourth trials. At the third trial, Williams testified that the victim was a drug dealer who sold heroin out of his shop. This testimony was not allowed at the fourth trial. More importantly, McKinnis' testimony at the third trial concerned both defendant and co-defendant. While she was always sure that the taller man was defendant, she was more tentative in her identification of the shorter man. Her uncertainty concerning the co-defendant may have weakened her credibility with regard to the identification of defendant. These infirmities were not present at the fourth trial because the co-defendant was not a party. Thus, differences in the testimony of Williams and McKinnis, combined with the fact that the third trial was a longer, more complicated proceeding, may have contributed to the different verdicts as much as Blevins' testimony.

On the other hand, the PCR judge ascribed the failure to call Blevins as a witness at the fourth trial to a strategic decision by trial counsel. Blevins acquired another criminal conviction between the third and fourth trial, but the jury at the third trial knew that Blevins had a pending charge. The troublesome aspect of the judge's analysis is its speculative nature. Strategic decisions informed by knowledge of the case will not be fodder for a PCR petition. State v. Castagna, 187 N.J. 293, 314 (2006). Whether a trial attorney made a strategic decision must be derived from a record, not speculation or surmise or even wishful thinking by the PCR judge or the prosecutor. Given the strikingly different results when Blevins testified and when he did not, the reason or reasons for his absence at the fourth trial should not be the source of speculation. An evidentiary hearing should have been conducted to address this allegation of ineffective assistance of counsel.

E. Failure to Object to Mistrial at Second Trial We affirm, however, dismissal of the claim that trial counsel was ineffective for not objecting to a mistrial at the beginning of the second trial. The record demonstrates that defense counsel initiated the call for a mistrial on the basis that the State had withheld evidence about possible third party guilt. Although the judge cited the delay that would occur while she addressed the third-party evidence, defense counsel supported proceeding with a new jury because the lengthy interruption might prejudice her client. Here, unlike issues regarding the failure to call Blevins as a witness at the fourth trial, this question can be resolved on the trial record. See Preciose, supra, 129 N.J. at 462. Trial counsel's decision was eminently reasonable under the circumstances. Defendant, therefore, cannot establish that his trial attorney's performance on this aspect of his representation fell below the expected standard, the first Strickland prong.

II

Defendant also filed a motion for a new trial. He argues he is entitled to a new trial based on newly discovered DNA evidence. He contends that if the jury had known that his DNA was not found on the sweatshirt or gun recovered from the garbage can, and that these items actually contained DNA from another man, it may well have reached a different verdict. On appeal, he asserts that the motion judge did not understand the nature and significance of DNA testing. He claims that the DNA testing results constituted material evidence that raised a reasonable doubt as to his guilt.

The State responds that the DNA test results cannot be considered material evidence that would alter the outcome of the trial. It emphasized that no witness placed defendant in a black hooded sweatshirt and that multiple individuals handled the gun. Accordingly, it argues that the test results do not exonerate defendant. Moreover, the State reminds us that the jury was well aware that the prosecution had no forensic evidence linking defendant with the murder and convicted him. Therefore, the State argues it is not likely that the DNA evidence would have changed the verdict.

Defendant also argues that he should receive a new trial based on McKinnis' recantation. Pointing to the improbability of McKinnis being able to identify the men she saw from such a long distance away, he asserts that her recantation is probably true and her trial testimony was probably false. He contends that the judge's reasoning was faulty because it relied on misinterpretations of the evidence, irrelevant facts, and unsubstantiated accusations. Finally, he claims that the court should at least have held an evidentiary hearing to determine if McKinnis' recantation is credible.

The State responds that McKinnis' recantation is not believable and does not warrant consideration of whether it meets the Carter/Ways*fn6 test for a new trial. It maintains that McKinnis' unequivocal trial testimony was not impugned by the leading and coercive questions posed by defendant's private investigator. Contending that the credibility of the recantation is not bolstered by the DNA test results or immaterial affidavits submitted by potential witnesses, it asserts that her recantation does not warrant an evidentiary hearing much less a new trial.

A. DNA Test Results

Defendant submitted four reports prepared by Orchid Cellmark concerning DNA testing performed on the sweatshirt and gun. The tests showed that defendant was not a contributor to the DNA found on either item. Further, swabbings of the neck and cuff areas of the sweatshirt produced a DNA profile that was a "mixture of multiple individuals, including at least one unknown male." Swabbings of the trigger and handle of the gun produced a partial Y-STR DNA profile that was a mixture of at least two males. "Due to the complexity of the mixtures," it was not possible to compare the swabbings from the sweatshirt and gun with regard to a common donor.

The judge found that "the newly discovered DNA evidence is not material evidence and has little exculpatory impact." He noted that there was conflicting testimony as to whether defendant was wearing the sweatshirt and that it was possible that defendant's bare fingers never touched the gun. He also noted that "many people touched the gun since the murder." Reasoning that the Orchid Cellmark reports did not change the fact that there never was any DNA evidence linking defendant to the gun or sweatshirt, he concluded that the new evidence would make no difference to a jury.

A trial judge may grant a defendant's motion for a new trial "if required in the interest of justice." R. 3:20-1.

Such a motion "is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000) (citing State v. Artis, 36 N.J. 538, 541 (1962)).

[T]o qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted. [Carter, supra, 85 N.J. at 314.]

All three prongs of the Carter test must be satisfied before a new trial is warranted. Ways, supra, 180 N.J. at 187. "The burden of establishing the necessary factors is upon the defendant." State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959).

When evaluating a defendant's proffer of newly discovered evidence, the court must bear in mind that "[a] jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." Ways, supra, 180 N.J. at 187; see also State v. Conway, 193 N.J. Super. 133, 171 (App. Div.) (holding that "[a] motion for a new trial upon the ground of newly discovered evidence is not favored and should be granted with caution by a trial court since it disrupts the judicial process"), certif. denied, 97 N.J. 650 (1984). Thus, "[n]ewly discovered evidence must be reviewed with a certain degree of circumspection to ensure that . . . if credible and material, [it] is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Ways, supra, 180 N.J. at 187-88.

Applying the Carter test to the facts of this case, there is no question that the second prong has been satisfied. As the State readily concedes, the DNA evidence was obtained after the trial and was not discoverable before hand by reasonable diligence.

As to the first prong, it is clear that the DNA evidence is material. "Material evidence is any evidence that would 'have some bearing on the claims being advanced.' . . . [E]vidence that supports a defense, such as alibi, third-party guilt, or a general denial of guilt would be material." Id. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). The absence of defendant's DNA on the sweatshirt and gun has some bearing on his claim of third-party guilt. If it had been available at the time of defendant's trial, this evidence would certainly have been admissible. As the court observed in State v. Behn, 375 N.J. Super. 409, 431 (App. Div.), certif. denied, 183 N.J. 591 (2005), there is no reason to consider evidence that would have been admissible at trial to be immaterial in the context of a newly discovered evidence motion simply because it may be characterized as impeachment evidence. Accord Henries, supra, 306 N.J. Super. at 531.

Evaluating the second part of the first prong--whether the evidence is merely cumulative or impeaching or contradictory--entails consideration of whether the evidence would have made a difference in the jury's verdict. Ways, supra, 180 N.J. at 188-89; Behn, supra, 375 N.J. Super. at 432. Such an analysis essentially merges the first and third prongs of the Carter test. Behn, supra, 375 N.J. Super. at 432. As the Court explained:

Determining whether evidence is "merely cumulative, or impeaching or contradictory," and therefore, insufficient to justify the grant of a new trial requires an evaluation of the probable impact such evidence would have on a jury verdict. Therefore, the focus properly turns to prong three of the Carter test, whether the evidence is "of the sort that would probably change the jury's verdict if a new trial were granted." Carter, supra, 85 N.J. at 314; see also Henries, supra, 306 N.J. Super. at 535. The characterization of evidence as "merely cumulative, or impeaching, or contradictory" is a judgment that such evidence is not of great significance and would probably not alter the outcome of a verdict. However, evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory. See Henries, supra, 306 N.J. Super. at 535. [Ways, supra, 180 N.J. at 188-89.]

Thus, "the reviewing court must engage in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury." Id. at 191. "The power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence." Id. at 191-92. Applying this analysis, it is highly unlikely that the newly discovered DNA evidence would have changed the jury's verdict.

First, while defendant's DNA was not found on the handle or trigger of the gun, DNA was detected from at least two other men. These results do not implicate a single, third party as the perpetrator. Moreover, a police detective informed the jury that investigators had been unable to raise fingerprints from the gun or magazine, and defense counsel argued during closing that the State had failed to present any forensic evidence to link defendant to the weapon. Thus, the absence of defendant's DNA evidence on the gun is not new.

Most damaging to defendant's proffer, however, is the fact that between the time of its discovery and its sampling for DNA, the gun had been touched by many individuals. Even aside from routine handling during forensics investigation and police storage, the gun was checked by sheriff's officers in the courtroom, held by the prosecutor, and passed among the jurors at two different trials. DNA could have been deposited on the weapon by any of those people. Thus, even though the Orchid Cellmark reports may have been admissible if they had been prepared prior to trial, by the time the testing was done in 2007, the evidence had little, if any, probative value. Admission of the results of DNA testing on the gun would not have made a difference to the jury.

With regard to the sweatshirt, testing of the inside surfaces revealed DNA samples from multiple individuals. Like the gun, it contained DNA from several people, thereby representing poor proof of third-party guilt. Also like the gun, the prosecution had failed to connect defendant with the sweatshirt through forensic evidence; the jury was aware that no hair or fiber analysis had been performed. Thus, the lack of forensic evidence on the sweatshirt was nothing new. Most significantly, however, there was no evidence to establish that defendant ever wore the sweatshirt.

Williams provided few details about the assailants' clothing other than to say that they wore black. His trial testimony conformed with his initial statement to the police that the taller man was wearing black and his testimony to the grand jury that the man had on "black sweat fatigues." Williams' description of the taller man's clothing, albeit vague, did not match the hooded sweatshirt with blue striped trim and a distinctive logo on the front that was taken from the garbage can.

McKinnis' description of the taller man as wearing a dark colored
T-shirt, likewise did not match the retrieved sweatshirt. It should
also be noted that in relating what she saw when defendant threw a
bundle into the garbage can, McKinnis stated that "Hak*fn7
went underneath his jacket or whatever and threw something in
the garbage can." Her statement thus implied that defendant was
wearing a "jacket or whatever" over the T-shirt.*fn8

Looking beyond the confines of the fourth trial for evidence linking defendant to the sweatshirt is likewise unavailing. At the third trial, Blevins testified that he was sitting on Springfield Avenue when he heard a gunshot and saw two men walk out of the sandwich shop. He described the shorter of the two as wearing a black "hoody" with gold writing on it and said that the man was pulling his shirt over something as he walked by. He described the taller man as wearing a striped shirt and shorts, although he admitted that he did not get a good look at him.

With regard to statements collected by the police during the course of the investigation, the best that can be said is that they are contradictory. Rasheed Graham stated that he saw two men leave the sandwich shop and the taller of them had on a black hoody, while the shorter one was wearing a white plaid shirt with stripes. Lula Singleton, on the other hand, stated that "Hak" was wearing long blue jeans and a black T-shirt when she saw him throw a dark piece of clothing into the garbage can. Willie "Bubba" Jones stated that he saw "a tall slim guy with a sweat jacket or hood all balled up around his hand and throw it in the garbage can." Jones did not say, however, that he saw defendant wearing the sweatshirt. Thus, the only statement that gives any credence at all to defendant's theory is Graham's, yet Graham never testified at trial and was never cross-examined about his observations. Moreover, Graham described the sweatshirt simply as black and did not note the stripes or prominent logo on the front.

The vast weight of the evidence, therefore, indicated that the taller assailant was not wearing the black hooded sweatshirt. Either the sweatshirt was worn by the shorter man, as Blevins testified, or it was not worn by either of the men and was simply carried along to conceal the gun. There is also the possibility that the sweatshirt was already in the garbage can and the gun was thrown in on top of it. In any case, it is not surprising that defendant's DNA was not discovered on the inside surfaces of the sweatshirt. Without some evidence placing defendant in the sweatshirt, the absence of defendant's DNA on the sweatshirt is not exculpatory and would not have changed the jury's verdict.

Unlike Peterson, the samples tested here were not taken directly from the victim. Rather, they were taken from items recovered some distance away that may or may not have been touched by defendant. In Peterson, it was reasonable to conclude that the murderer was the person whose blood was under the victim's fingernails. 364 N.J. Super. at 392. Here, it is not reasonable to conclude that the murderer was the person(s) whose DNA was on the sweatshirt or gun. In short, Peterson does not change the result of the evaluation of defendant's motion under the Carter test.

If it had been established that the shooter wore a black hooded sweatshirt like the one found in the garbage can, the DNA test results would tend to exculpate defendant and a new trial would be warranted. The facts, however, do not establish that the taller assailant, whom witnesses identified as defendant, ever wore that shirt. For that reason, the absence of defendant's DNA from the sweatshirt proved nothing. The DNA test results do not warrant a new trial, and the PCR court's denial of defendant's motion on that basis should be upheld.

B. McKinnis Recantation

McKinnis executed an affidavit in 2007 recanting her earlier statements in 1995 and 1997 and trial testimony in 1998 and 1999. McKinnis' recantation after so long a time is highly suspect and the wording of the affidavit suggests she responded to leading and perhaps coercive questions. Given the critical nature of McKinnis' testimony, however, an evidentiary hearing should be held to allow the judge to determine McKinnis' credibility first hand.

McKinnis' account of her observations of defendant on the night of the murder did not change from the time of her first statement to police on August 24, 1995, to her second statement to police on January 13, 1997, to her testimony at the third trial on July 22, 1998, to her testimony at the fourth trial on January 28, 1999. At both trials she adamantly stuck to her story despite vigorous cross-examination, insisting that "I seen what happened, and if I seen it, I seen it," and "I know who I saw. I saw what I saw."

When approached on July 18, 2007, by private investigators retained on defendant's behalf, McKinnis was living in York, Pennsylvania. In transcribed questions and answers, McKinnis stated that while viewing the police photo array she "was directed, [sic] pointed at the bottom row of the pictures and said which one of these look familiar and he had his finger pointed at the one I thought I saw and I picked him out."*fn9

WB: Now, ah, those . . . those two guys do you actually . . . are you . . . are you a hundred percent sure who these two guys were or were you just guessing.

PM: I was just guessing.

WB: And it was because the Prosecution wanted you to pick a certain person.

PM: Yes.

WB: Ah, that night were you on . . . using any . . . any drugs.

PM: Yes.

WB: What drugs were you using.

PM: Heroin.

WB: Had you used any cocaine that day too. PM: No.

WB: You were just using heroin.

PM: Talk over Patricia McKinnis. Heroin and drinking, drinking a couple of beers.

WB: Do you think that between the beers and the heroin that it would have affected your ability to ah . . . function as normal.

PM: Yes.

McKinnis also volunteered a statement directed to defendant: "I just want to say I'm sorry for you haven [sic] to being [sic] in in [sic] jail for all these years. I wish I could take back some years for you, but I can't. I just want you to accept my apology. My deepest apology." She signed the transcript of her statements before a notary on November 28, 2007.

Drawing from the record, defendant advances several arguments why McKinnis' recantation is probably true. The State counters with arguments why it must be a fabrication. Both advance cogent arguments. For example, McKinnis withstood vigorous cross-examination about what she saw and her ability to identify defendant given time, distance, and quality of her eyesight. Her statement never varied. Blevins also passed on the sidewalk the two men identified by McKinnis and he testified that neither man was defendant. Moreover, McKinnis was not alone when she heard the shot and saw the men. She and a friend, Lula Singleton, went to the police station. Both gave similar statements. McKinnis testified at trial only after Singleton, who was supposed to testify at trial, was killed just before the third trial. In her testimony at the third trial, McKinnis repeatedly used the word "we" in her description of what she saw and heard that evening. The use of the word "we" raises the issue of how much her testimony was based on her friend's observations and recollection. Then, of course, McKinnis asked the judge at the conclusion of her testimony, if she could say something. The trial judge prevented her from volunteering any information.

"Courts generally regard recantation testimony as suspect and untrustworthy." State v. Carter, 69 N.J. 421, 427 (1976). "Partly because recantations are often induced by duress or coercion, the sincerity of a recantation is to be viewed with extreme suspicion." State v. Hogan, 144 N.J. 216, 239 (1996) (citations omitted). "Consequently, the burden of proof rests on those presenting such testimony to establish that it is probably true and the trial testimony probably false." Carter, supra, 69 N.J. at 427 (citations omitted).

The test for the judge in evaluating a recantation upon a motion for a new trial is whether it casts serious doubt upon the truth of the testimony given at the trial and whether, if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice. His first duty is, therefore, to determine whether the recanting statement is believable. [State v. Puchalski, 45 N.J. 97, 107-08 (1965).]

"If the judge is satisfied that the present testimony of the recanting witness is untrue, the application [for a new trial] must be denied." State v. Engel, 249 N.J. Super. 336, 386 (App. Div.), certif. denied, 130 N.J. 393 (1991).

"[T]he credibility of recantation testimony is peculiarly a question for the trial judge who sees the witnesses, hears their testimony and has the feel of the case . . . . [B]ecause a reviewing court does not enjoy that advantage it should defer to the trial judge's findings on this sensitive issue." Ibid. (citations omitted). Accord Carter, supra, 69 N.J. at 427-28. Here, of course, the judge did not see McKinnis or hear her testimony. He had no particular feel of the case. Accordingly, his conclusions concerning the believability of McKinnis' recantation are entitled to no special deference. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (noting that trial judge's decision is not entitled to any special deference where it rests solely upon considerations apparent from the face of the record).

McKinnis' testimony was critical to defendant's conviction. Williams' identification was significant, but it was not necessarily conclusive. Williams' identification gained credibility when corroborated by McKinnis--a witness who did not know Williams or the victim but who did know defendant. McKinnis' recantation would not exonerate defendant. It would, however, weaken Williams' identification and cast doubt on the police photo array procedures.

Courts should grant an evidentiary hearing if the defendant has presented a prima facie claim in support of relief. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing Preciose, supra, 129 N.J. at 462), certif. denied, 162 N.J. 199 (1999). Even "inherently suspect" affidavits that set forth exculpatory facts should not be summarily rejected if the opportunity exists for a first-hand credibility determination. State v. Allen, 398 N.J. Super. 247, 258 (2008). Because defendant has made a prima facie showing that McKinnis' recantation is probably true and, if true, would probably change the results of his trial, an evidentiary hearing on the witness recantation claim must be conducted.

In summary, we affirm the order denying a new trial based on DNA testing of a sweatshirt and gun retrieved from a garbage bin proximate to the shooting site. We remand for an evidentiary hearing to evaluate the credibility of the recantation by Patricia McKinnis of her identification of defendant. We also affirm denial of defendant's PCR petition, except for the need to examine at an evidentiary hearing the reasons for the absence of Blevins at the fourth trial.

Affirmed in part; remanded in part. We do not retain jurisdiction.

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